Monday, October 25, 2010

Compatibilism and punishment

Necessarily, a punishment of x is only just if the occurrence of the punishment is at least partly explained by something x is culpable for. (Premise)

Necessarily, if x is guilty of having committed a horrific crime, x is unrepentant and unforgiven, and we believe on overwhelming evidence that x is guilty of the crime, then it is ceteris paribus just to punish x on the basis of the evidence. (Premise)

If compatibilism holds, it is possible to believe on overwhelming evidence that x is guilty of having committed a crime, without that belief or evidence being even partly explained by anything x is culpable for. (Premise)

If compatibilism holds, it is possible to justly punish x without the punishment being even partly explained by anything x is culpable for. (Premise, justified by 2 and 3 and some uncontroversial modal intuitions)

But the consequent of (4) is false. (By 1)

Therefore, compatibilism is false. (By 4 and 5)

The intuition behind (1) is that the punishment needs to be a result of the crime. Part of the intuition behind (2) is that what matters for justice is that the evidence be good, not what sort of evidence it is. But (3) observes that if compatibilism were true, we could have cases where our overwhelming evidence for a crime is the state of the world prior to the agent's coming into existence.

One might want to modify (1) by subjectifying it: justice only requires that one believe that the punishment would be a result of the crime. That's fine—the rest of the argument adapts to that version of (1).

This argument has an interesting consequence. It implies that one could not be criminally culpable for an action if that action follows with overwhelming probability from a prior state that one is not culpable for. This means that not only does the full causal determination of a wicked deed by an earlier state one is not culpable for take away culpability, but overwhelmingly strong probabilification will significantly decrease culpability.

The argument also rules out some Molinist views (I am grateful to Trent Dougherty for pointing out basically this)—namely those on which the truth values of the conditionals of freedom are never explained by the truth values of the consequents.

If I were a compatibilist, I think I'd deny (2). I'd insist that at least some of the evidence of the crime be explanatorily posterior to the crime. Not for epistemological reasons, but to ensure the "resultingness" of the punishment. This would, however, have the odd consequence that a person might become justly convictable by a piece of evidence that lowers the probability that she committed the crime. For suppose that all the evidence that has been given was about the state of the universe long prior to the defendant's crime, and that this evidence made it 99.99999999999% likely that the defendant committed the crime. We could now imagine a piece of testimony by an eyewitness to the crime that simultaneously defeats some of the evidence from the previous state of the universe and replaces it with slightly weaker evidence that is, nonetheless, explanatorily dependent on the crime, so that now the evidence makes it only 99.9999999998% likely that the defendant committed the crime. Since that's a probability high enough for conviction (at least in a non-capital case), and since now we have the explanatory connection requirement satisfied, it follows that this evidence which lowered the probability of guilt has made the criminal justly convictable.

11 comments:

I’m not sure I understand (1). I would initially have thought that “the occurrence of the punishment is … explained by” the attitudes and actions of the punishers. As a second cut, I would have thought that the occurrence of a just punishment is explained by the commission of the crime, not by evidence of the crime. But you seem to be interpreting (1) as something like: “it’s only just to punish if the evidence you have is causally downstream from the occurrence of the putative crime, so that inferences from evidence to crime-commission are from effects to causes.”

That seems epistemologically safe to me, but not a principle of justice. Arguably, there is a principle of justice that says that punishment is only just if it is applied after, and because of, the commission of a crime. In other words, no pre-emptive punishing like in Philip K. Dick stories. I don’t see why this principle is ruled out for compatibilism. Granted, the incompatibilist has a metaphysical reason for this restriction, namely that the crime might not happen if the agent doesn’t actually choose to go through with it, and we should give them the benefit of the doubt. The compatibilist can only opt for an epistemologized version of this reason—we can’t _know_ the crime will happen until the agent actually goes through with it. But there might be other reasons the compatibilist can appeal to also.

I take (1) as expressing the intuition that the occurrence of the punishment should be a result of the crime. This is stronger than saying that the crime is a reason for the punishment. The "because of the crime" has to be both reason-stating and explanatory, so the crime must be explanatorily prior to the punishment. At least typically this means the crime has to be causally prior to the punishment. Or at least that's my intuition here.

Here's another way to put it. Justice requires that, normally, had the criminal not committed the crime, she wouldn't have received the punishment. The "normally" rules out Frankfurt-like counterfactual interveners (e.g., if the jury chooses to vote to acquit, the intervener forces them to "vote" to convict).

Suppose we come to discover, by induction from many many cases, a natural law that left-handed men who are born under a full moon aligned between Jupiter and Saturn under the sign of Aries will (intentionally, deliberately, with malice aforethought) murder their fathers by strangulation on their thirtieth birthday. One day Genghis’ father is found strangled, and after investigation we discover that Genghis was born under these conditions, is left-handed, and has just turned thirty. There is no other evidence of any crime. Genghis maintains his innocence but refuses to provide any alibi. No one else is a likely suspect.

Suppose a jury considers whether Genghis is guilty of murder. I take it you believe it is not possible justly to punish him, since the evidence before the jury is just events (surrounding his birth) for which Genghis is not responsible. I don’t share that intuition. It seems to me that Genghis is almost certainly guilty, we know this, and can justly punish because we know it. The causal and temporal relations of evidence to crime are irrelevant. It seems to me that this respects the dictum, "If the crime had not occurred, punishment would not have been administered." Obviously there is a remote chance Genghis did not commit this crime but no one is saying that punishing the innocent is just.

If the reply is that we have the evidence of the father’s body, well, surely we will always have something like that—evidence that a crime has been committed. That’s the only reason to prosecute.

However, what I also think is that our epistemological position makes any case even remotely like this impossibly far-fetched, so that our intuitions are quite likely to be scrambled.

Well, actually, I was imagining a scenario where there is no causal evidence that a crime occurred. I think one can modify the case. We have Genghis, and we have no idea where Genghis' dad is, but that's not evidence, because we never have any idea where Genghis' dad is. I take it you would still say the same thing.

(I do find the case you give hard to imagine, but that's because of my incompatibilism. If we were to discover such a law, I think it would give us very good reason to doubt that such killings are free.)

Do you think the following would be OK? We try Genghis before he's born, and then feed him a drug that will only kick in a day after his 30th birthday, and will punish him appropriately from that day (maybe the drug will compel him to stay in one building all day, for the rest of his life; or if we think the death penalty is permissible, the drug just kills him).

I think I would not approve the pre-natal trial, because the crime might not be committed--Genghis' dad might be murdered by someone else first, for example. But I see the point of the question, and it is hard to answer well. I think I want to say something like: the _point_ of such a "trial" would be quite different in a world in which we could conduct it, to the extent that it would be hard to call it "punishment" any longer (rather than, say, quarantine). I suppose the natural way to extend this thought is to say that our sense of retributive justice is somewhat contingent on our epistemic limitations.

Question for you: can you turn this argument into an argument against divine determinism? That is, if all events are in some sense "done" by God (at once), then the punishment (of hell, e.g.) is not exactly a _response to_ the evil perpetrated by the agent. Is the divine determinist committed to divine injustice, on your view?

"the _point_ of such a 'trial' would be quite different in a world in which we could conduct it, to the extent that it would be hard to call it 'punishment' any longer (rather than, say, quarantine)"

If you reject the thesis that punishment needs to be causally connected with the crime, I am not sure why you think it wouldn't be 'punishment'. On the story I gave, the punishment still temporally follows the crime, but not causally. (Which reminds me: Here is an argument for (1): (1) gives the best explanation of why we think punishment should come after the crime.)

The idea that God determines us such that we cannot but sin and then punishes us for the determined sin seems to me to be fraught with injustice, but maybe not for the reasons in the present argument.

For divine determinism is compatible with secondary causation (or at least I don't know any good argument that it's not), and God could set secondary causes up so that sins cause their punishments, and then the strictures in (1) would be satisfied. But the following view would be ruled out: God simultaneously sets up two processes. One of the processes deterministically leads to the sin and the other process, causally independent of the first, results in a punishment minutes after the sin has been committed.

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